ABSTRACT
In this chapter we will attempt to achieve something as rare and excellent as it is difficult: philosophical clarity about how it is possible for legal texts (constitutions, statutes, common law decisions, written contracts and so forth) to be received and used by lawyers, judges and laypersons on the basis of the conceptual dualism ‘clear versus obscure’. Although most of us know how to use the words ‘clear’ and ‘obscure’ in daily life, thinking about what makes a given legal text clear or obscure in the first place is something we hardly ever do. Seen from the point of view of the legal technician and the consumer of legal language, clarity of expression is instrumental for achieving certain goals. Indeed, even obscurity of expression can be used as a tool, as Jeremy Bentham noticed when he attacked the opacity and complexity of the old English common law for its tendency to serve ruling class interests (Kayman 2004, 214-19). But despite the many uses (and misuses) of legal language, getting clear about the problem of how it is possible for legal language to present itself as either clear or obscure is a different kind of enterprise than trying to craft it so that its audience will unreflectively receive it as clear or obscure. The second task is but an exercise in instrumental reason – a mere calculation of means and ends; the first requires genuine thinking.
